On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0220.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Parrillo, Lihotz and Messano.
Defendant Stephen Balogh Jr. appeals from the judgment of conviction that followed a jury trial at which he was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1)(count one), and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(3)(count five), and acquitted of the remaining counts of the indictment. At sentencing, the trial judge imposed concurrent five-year probationary terms with a specific condition that defendant serve 364 days in the county jail, as well as the appropriate fines and penalties.
Defendant raises the following points for our consideration:
THE DEFENDANT'S RIGHT[S] TO CONFRONTATION . . . AND . . . TO DUE PROCESS OF LAW . . . WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS AND OTHER EVIDENCE FROM AN ABSENTEE WITNESS. (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO COMPEL THE PRODUCTION OF A KEY DEFENSE WITNESS NOTWITHSTANDING THE FACT THAT THE WITNESS WAS ISSUED A PROPER SUBPOENA AND DID NOT APPEAR.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . AND THE RIGHT TO PRESENT A DEFENSE . . . WAS VIOLATED BY THE TRIAL COURT'S IMPROPER INTERFERENCE WITH DEFENSE TACTICS AND STRATEGY.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE SUPPRESSION OF EXCULPATORY EVIDENCE DURING THE STATE'S PRESENTATION BEFORE THE GRAND JURY.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE IMPROPER ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE. (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE IMPROPER CLAWANS INSTRUCTION TO THE JURY, ALLOWING THE JURORS TO EXCUSE THE NON-PRODUCTION OF A WITNESS EVEN THOUGH THE WITNESS OBSTRUCTED JUSTICE BY IGNORING A PROPERLY ISSUED SUBPOENA. (NOT RAISED BELOW)
THE USE OF EVIDENCE OF THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST TO PROVE HIS GUILT VIOLATES THE NEW JERSEY COMMON LAW. (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT, THREATENING JURORS WITH HIGHER TAXES IF THEY REQUIRE THE STATE TO PRODUCE FORENSIC EVIDENCE. (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE STATE'S IMPROPER RELIANCE ON EXPERT OPINIONS WITHOUT A PROPER FOUNDATION. (NOT RAISED BELOW)
THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION WAS ERRONEOUS AND CONTRADICTORY, AND THE PROSECUTOR REINFORCED AND COMPOUNDED THE ERROR IN HER COMMENTS TO THE JURORS. (NOT RAISED BELOW)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE FAILURE OF THE STATE TO SHOW AN UNINTERRUPTED CHAIN OF CUSTODY.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (PARTIALLY RAISED BELOW)
We have considered these arguments in light of the trial record and applicable legal standards. We affirm.
Detective Brian Mieczkowski of the Edison police department testified that on the night of November 26, 2004, he was on patrol with his partner Jason Vickery in a marked police vehicle. As they passed a 7-Eleven store on Route 27, they observed "an older model Ford Bronco" with "an individual" "[i]n the driver's seat" "slumped over toward the bench seat of the vehicle." Vickery parked the patrol car behind the Bronco and approached the passenger side of the truck as Mieczkowski approached the driver's side. Mieczkowski could not tell if the person in the truck was sick or simply sleeping. However, when he looked through the truck window to the other side, he saw a worried expression on Vickery's face. Mieczkowski then heard Vickery yell something before opening the passenger door of the truck and leaning into it.
In response to his partner's actions, Mieczkowski immediately opened the driver's side door of the Bronco and observed defendant turning away from Vickery, who was trying to grab something from defendant. Mieczkowski saw what appeared to be crack cocaine and either a "scratch-off" lottery ticket or something silver in defendant's hand. Defendant attempted to punch the officer and swallow the suspected cocaine. Mieczkowski and ...